Exhibit 10.2
Amendment to Stock Purchase Agreement and Share Exchange
This Amendment to the Stock Purchase Agreement and Share Exchange dated
July 1, 2003, between Sealant Solutions, Inc., a Delaware corporation with its
principal place of business located at 00 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000 ("Sealant"); PowerChannel, Inc., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000
("PowerChannel").
RECITALS:
A. WHEREAS, the parties entered into a Stock Purchase Agreement and
Share Exchange dated July 1, 2003, ("Agreement"), whereby Sealant acquired all
of the shares of PowerChannel and PowerChannel became a wholly owned subsidiary
of Sealant and in connection therewith Sealant agreed to issue an amount of
shares equal to eighty-five (85%) percent of the fully diluted outstanding
shares of Sealant to the PowerChannel shareholders (9,117,525 shares).
B. WHEREAS, all of the parties to the Agreement desire to amend the
terms of the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Amendment and other valuable consideration, the receipt of which is
acknowledged, the parties to this Agreement agree as follows:
1. Merger: The parties agree to amend this transaction from a Stock
Purchase Agreement and Share Exchange to an Agreement and Plan of
Merger ("Merger") in compliance with Section 251(c) of the provisions
of the Delaware General Corporation Law ("DGCL") with the result that
Sealant shall continue as the surviving corporation and the separate
existence of PowerChannel shall cease in connection therewith:
(a) PowerChannel shall merge with and into Sealant, the
separate existence of PowerChannel shall cease and terminate,
and Sealant shall continue as the surviving corporation
(Sealant as the surviving corporation after the Merger is
hereinafter sometimes referred to as the "Surviving
Corporation");
(b) all of the rights, privileges, immunities, powers,
franchises and authority (both public and private) of Sealant
and PowerChannel shall vest in the Surviving Corporation;
(c) all of the assets and property of Sealant and PowerChannel
of every kind, nature and description (real, personal and
mixed and both tangible and intangible) and every interest
therein, wheresoever located, including, without limitation,
all debts or other obligations belonging or due to Sealant or
PowerChannel, all claims and all causes of action, shall be,
and be deemed to be, vested, absolutely and unconditionally,
in the Surviving Corporation; and
(d) all debts and obligations of Sealant or PowerChannel, all
rights of creditors of Sealant or PowerChannel and all liens
or security interests encumbering any of the property of
Sealant or PowerChannel shall be vested in the Surviving
Corporation and shall remain in full force and effect without
modification or impairment and shall be, and be deemed to be,
enforceable against the Surviving Corporation and its assets
and properties with the same full force and effect as if such
debts, obligations, liens or security interests had been
originally incurred or created by the Surviving Corporation in
its own name and for its own behalf. Without limiting the
generality of the foregoing, Surviving Corporation
specifically assumes all continuing obligations which Sealant
or PowerChannel would otherwise have to indemnify its officers
and directors, to the fullest extent currently provided in the
Surviving Corporation's Certificate of Incorporation, By-Laws
and pursuant to the DGCL, with respect to any and all claims
arising out of actions taken or omitted by such officers and
directors prior to the Effective Date.
2. Tax Free Reorganization: Sealant and PowerChannel intend that the
merger of Sealant and with and into PowerChannel will quality as a
tax-free reorganization pursuant to Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code")
3. Conversion: On and as of the Effective Date, by virtue of the Merger
and without any action on the part of the holder of any shares of
Sealant capital stock or capital stock of PowerChannel:
(a)the outstanding shares of PowerChannel Common Stock shall
be converted and exchanged into shares of the Sealant common
stock in the following manner: Each issued and outstanding
share of the PowerChannel Common Stock shall, by virtue of the
Merger and without any action on the part of the holder
thereof, be converted and exchanged into .41669 duly
authorized, validly issued, fully paid, and non-assessable
share (the "Common Exchange Ratio") of Sealant Common Stock
whereby the PowerChannel shareholders shall own an amount of
shares equal to eighty-five (85%) percent of the fully diluted
outstanding shares of Sealant.
(b) The shares of the Sealant Common Stock to be issued to the
PowerChannel shareholders shall be deemed to be "restricted
securities" as defined by Rule 144(a)(3) under the Securities
Act of 1933, as amended (the "Securities Act"). The
certificates evidencing such shares shall bear the following
restrictive legend:
"The shares evidenced by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold
or otherwise transferred unless registered under the
Securities Act or there is an opinion from counsel to
the company that such sale or other transfer may be
made pursuant to an exemption from the registration
requirement of the Securities Act."
4. Effective Date: The closing of the Merger (the "Closing") shall take
place on such date, at such place and at such time (the "Closing Date")
within two (2) business days after the satisfaction or waiver of the
last of the conditions set forth in the Agreement as shall be
determined by the mutual consent of Sealant and PowerChannel. The
Merger shall become effective as at the close of business on the date
specified in the Certificate of Merger to be filed in the manner
required by the DGCL or, if none, on the date of filing (the "Effective
Date").
5. Full Force of Agreement: All representations, covenants and warranties
as well as all other conditions and obligations set forth in the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: SEALANT SOLUTIONS, INC.
_______________________ By: /s/ Xxxxxxx Xxxxx
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ATTEST: POWERCHANNEL, INC.
_______________________ By: /s/ Xxxxxx Xxxxxxx
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